Terms and Conditions of Service, Constitutional Petition and Laches

Terms and Conditions of Service, Constitutional Petition and Laches Case Laws Constitutional Law Employment & Incentives Knowledge - Constitutional Law Laches Lahore High Court Litigation & Arbitration Maintainability Service Appeal Solutions - Constitutional Law Mr. Justice Mirza Viqas Rauf in his judgment has decided the issue regarding terms and conditions of service, constitutional petition and laches in Writ Petition No. 1651 of 2016.

1. By way of this constitutional petition, the petitioner seeks twofold relief, firstly setting-aside of order dated 27th of September, 1999, whereby he was removed from service or in the alternate direction to respondent to decide the pending departmental appeal.

2. Precisely, the facts necessary for adjudication of instant petition are that the petitioner was appointed as Junior Clerk in Education Department on 15th of June, 1995. In the meanwhile, he was proceeded departmentally on account of multiple charges, including charge of physical assault upon a female colleague who moved a complaint to this effect. After departmental inquiry, major penalty of removal from service was imposed vide order dated 27th of September, 1999. It is the stance of the petitioner that he filed departmental appeal against the said order which has yet not been decided by the respondent No.1.

3. Learned counsel for the petitioner, while reiterating the factual resume submitted that order imposing the major penalty of removal from service was illegal and unlawful. Learned counsel maintained that the respondent No.1 was bound to decide the departmental appeal and inaction on his part is clearly detrimental to the fundamental rights of the petitioner guaranteed under the Constitution.

4. After having heard learned counsel for the petitioner at some length, I have examined the available record.

5. It is an admitted fact that the petitioner is a civil servant and he was proceeded by the department on account of charges of misconduct and moral turpitude. The departmental proceedings culminated into removal from service through order dated 27th of September, 1999. Section 4 of The Punjab [Service] Tribunals Act, 1974 provides the remedy of appeal to a civil servant, aggrieved from any final order, whether original or appellate, made by the appellate authority in respect of any of the terms and conditions of his service. The same is reproduced below for ready reference and convenience:

“4. Appeal to Tribunals.– (1) Any civil servant aggrieved by any final order, whether original or appellate, made by a departmental authority in respect of any of the terms and conditions of his service may, within thirty days of the communication of such order to him or within six months of the establishment of the appropriate Tribunal, whichever is latter prefer an appeal to the Tribunal–
Provided that–

(a) where an appeal, review or representation to a departmental authority is provided under the Punjab Civil Servants Act, 1974, or any rules against any such order no appeal shall lie to a Tribunal unless the aggrieved civil servant has preferred an appeal or application for review or representation to such departmental authority and a period of ninety days has elapsed from the date on which such appeal, application or representation was so preferred;

(b) no appeal shall lie to a Tribunal against an order or decision of a departmental authority determining the fitness or otherwise of a person to be appointed to, or hold a particular post or to be promoted to a higher grade; and

(c) no appeal shall lie to a Tribunal against an order or decision of a departmental authority made at any time before the 1st July, 1969.

(2) Where the appeal is against an order or decision of a departmental authority imposing a departmental punishment or penalty on a civil servant, the appeal shall be preferred–

(a) in the case of a penalty of dismissal from service, removal from service, compulsory retirement or reduction to a lower post or time-scale or to a lower stage in a time-scale to a Tribunal referred to in sub-section (3) of section 3; and

(b) in any other case, to a Tribunal referred to in sub-section (7) of section 3 and where no such Tribunal is established, to a Tribunal established under sub-section (3) of that section.

Explanation– In this section “departmental authority” means any authority, other than a Tribunal which is competent to make an order in respect of any of the terms and conditions of civil servants.”

It is manifestly clear from the above that order of the departmental authority in respect of any of the terms and conditions of service of a civil servant can only be challenged by way of an appeal before the Tribunal constituted under Section 3 of the Act, ibid, however, there are two pre-conditions for filing of such appeal as embodied in the above referred provision. As per proviso (a) of sub-section 1 of Section 4 of The Punjab [Service] Tribunals Act, 1974 where an appeal, review or representation to a departmental authority is provided under the Punjab Civil Servant Act, 1974 or any rules against order of the departmental authority, civil servant has to prefer such appeal, review or representation to such departmental authority and on expiry of ninety days period from the date on which such appeal, application or representation was so preferred, the civil servant can bring an appeal before Tribunal irrespective of the fact whether departmental authority has passed some order on such appeal or application for review or representation.

6. There is no cavil that the order dated 27th of September, 1999 was appealable in terms of Section 21 of The Punjab Civil Servants Act, 1974 and this was the reason that the petitioner filed departmental appeal challenging the order of dismissal before the departmental authority. As already observed that by virtue of Section 4 of The Punjab [Service] Tribunals Act, 1974 where an appeal, review or representation to a departmental authority is provided under the Punjab Civil Servants Act, 1974 or any rules against order of the departmental authority, civil servant has to prefer such appeal, review or representation to such departmental authority and on expiry of ninety days period from the date on which such appeal, application or representation was so preferred, the civil servant can bring an appeal before Tribunal. This Court in view of specific bar placed in Article 212 of The Constitution of The Islamic Republic of Pakistan, 1973 cannot exercise or extend its Constitutional jurisdiction in oblivion of such impediment. Guidance in this respect can be sought from “National Assembly Secretariat through Secretary versus Manzoor Ahmed and others” (2015 SCMR 253).

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